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46 F.

3d 1005

ALLSTATE INSURANCE COMPANY, an Illinois


corporation,
Plaintiff-Appellant,
v.
Richard WORTHINGTON, individually and as guardian ad
litem
of Kaycee Lynn Kimmel, Kristopher Dean Kimmel and
Charlee
Karena Kimmel; Karen Worthington, individually and as
guardian ad litem of Kaycee Lynn Kimmel, Kristopher Dean
Kimmel and Charlee Karena Kimmel; David Alan Roth,
individually and as guardian ad litem of Kaycee Lynn Kimmel,
Kristopher Dean Kimmel and Charles Karena Kimmel; Kelsey
Kyle Kimmel, Nancy Ravera and Jae Lowder, DefendantsAppellees.
No. 93-4127.

United States Court of Appeals,


Tenth Circuit.
Jan. 30, 1995.

Robert G. Wright (Gary L. Johnson, also of Richards, Brandt, Miller &


Nelson, with him on the briefs), Salt Lake City, UT, for plaintiffappellant.
Colin King (Edward B. Havas and Alan W. Mortensen, also of Wilcox,
Dewsnup & King, with him on the brief), Salt Lake City, UT, for
defendants-appellees.
Before SEYMOUR, Chief Judge, LOGAN, Circuit Judge, and
DAUGHERTY, District Judge.*
LOGAN, Circuit Judge.

Allstate Insurance Company filed this federal diversity action for a declaratory
judgment, naming as defendants its insureds in a homeowner's policy and the
parties suing those insureds in a Utah state court, seeking a determination that it
had no duty under a homeowner's insurance policy to defend and indemnify
Karen Worthington Brown (Brown) and her ex-husband, Richard Worthington
(husband). The suit arose out of Richard Worthington's kidnapping of hostages
and fatal shooting of a nurse. Brown had been sued in state court by victims and
their survivors on claims that she had negligently entrusted weapons to her
husband and failed to warn the potential victims. On appeal, Allstate asserts
that summary judgment for defendants was improper because (1) the insurance
policy unambiguously provided that because the husband's intentional acts
were not covered under the policy Brown's negligent acts also were not
covered; and (2) Brown's actions or omissions did not constitute an "accident"
under terms of the policy.1

* Brown underwent a tubal ligation at Alta View Hospital in Sandy, Utah, in


July 1989. Her husband did not approve of the procedure, and over the
following two years exhibited growing resentment and hostility toward the
doctor and the staff at Alta View Hospital. The allegations in the state court
complaints were that, as a precaution, Brown removed all of her husband's
firearms from their residence; but, on the eventful day, when her husband
demanded that she give him the guns, she did so. Brown allegedly knew her
husband planned to go to the hospital and kill the doctor who had performed
the tubal ligation, but she did not try to warn her doctor or the Alta View
Hospital. Her husband did take firearms and a bomb he had constructed to the
Alta View Hospital, where he took hostages and shot and killed a nurse, Karla
Roth.

Karla Roth's husband and her children brought suit in Utah state court against
both Brown and her husband. The Roths alleged that Brown "negligently and/or
recklessly" breached a duty to warn the potential victims or the proper
authorities and the failure contributed to Karla Roth's death.2 I R. 78.
Subsequently others sued Brown for severe emotional distress and other
injuries based upon theories of negligence in returning weapons to her husband
and negligently or recklessly failing to warn the potential victims or the proper
authorities.

Brown requested that Allstate defend her in the state negligence suits under a
homeowner's policy in effect at the time. Allstate then filed this declaratory
judgment action in the federal district court, claiming that it had no duty to
defend and indemnify either Brown or her husband against the state tort claims.
In considering cross motions for summary judgment, the court held that the

criminal act exclusion in the policy unambiguously excluded coverage for the
husband's acts. The district court held, however, that the term "an insured" as
used in the intentional and criminal exclusion clauses was ambiguous as to
whether the husband's criminal and intentional acts excluded indemnification
for the wife's negligent acts. II Appellant's App. 439-40. Alternatively, it found
that even if the intentional and criminal exclusionary clauses were not
ambiguous as to coverage for the wife's alleged negligence, such preclusion
would violate Utah substantive law that policies be interpreted based upon
principles of individual responsibility. Id. at 440, 453. Thus, it granted
summary judgment against the insurance company with respect to coverage for
Brown, and only that determination is at issue in this appeal.
II
5

We review the grant of summary judgment de novo, applying the same


standards as the district court. Utah Power and Light Co. v. Federal Ins. Co.,
983 F.2d 1549, 1553 (10th Cir.1993). If, as here, there are no genuine issues of
material fact, we determine whether the district court correctly applied the
substantive law of Utah. See APC Operating Partnership v. Mackey, 841 F.2d
1031, 1033 (10th Cir.1988).

Allstate first argues that the district court erred in finding the insurance contract
ambiguous. Allstate asserts that as a coinsured of her husband the contract
clearly excluded Brown's acts or omissions from coverage. As with any
question of contract interpretation we examine closely the language of the
particular contract. We apply Utah law, which provides that insurance policies
are interpreted under general contract principles. Bergera v. Ideal Nat'l Life Ins.
Co., 524 P.2d 599, 600 (Utah 1974); see also Utah Power and Light Co., 983
F.2d at 1553. Whether a contract is ambiguous is a question of law to be
determined by this court. See Alf v. State Farm Fire and Casualty Co., 850 P.2d
1272, 1274 (Utah 1993); Stegall v. Little Johnson Assocs., 996 F.2d 1043, 1048
(10th Cir.1993). Ambiguities in an insurance contract are construed against the
insurer. Utah Farm Bureau Mut. Ins. Co. v. Orville Andrews & Sons, 665 P.2d
1308, 1309 (Utah 1983); see also Royal College Shop, Inc. v. Northern Ins.
Co., 895 F.2d 670, 674 (10th Cir.1990). "Under Utah law, an insurer must use
explicit language if it intends to limit coverage by an exclusion." United States
Fidelity & Guar. Co. v. Sandt, 854 P.2d 519, 524 (Utah 1993).

The liability section of the policy provides in part:

8SECTION II--FAMILY LIABILITY AND GUEST MEDICAL PROTECTION

Coverage X
Family Liability Protection
Losses We Cover:
9
Subject
to the terms, limitations and conditions of this policy, Allstate will pay
damages which an insured person becomes legally obligated to pay because of
bodily injury or property damage arising from an accident and covered by this part
of the policy.
10 may investigate or settle any claim or suit for covered damages against an
We
insured person. If an insured person is sued for these damages, we will provide a
defense with counsel of our choice, even if the allegations are groundless, false or
fraudulent. We are not obligated to pay any claim or judgment after we have
exhausted our limit of liability.
Losses We Do Not Cover:
1. We do not cover bodily injury or property damage resulting from:
11
12

a) An act or omission intended or expected to cause bodily injury or property


damage. This exclusion applies even if the bodily injury or property damage is
of a different kind or degree, or is sustained by a different person or property,
than that intended or expected; or

13

b) An act or omission committed by an insured person while insane or while


lacking the mental capacity to control his or her conduct or while unable to
form any intent to cause bodily injury or property damage. This exclusion
applies only if a reasonable person would expect some bodily injury or property
damage to result from the act or omission.

2. We do not cover bodily injury or property damage resulting from:


14
15

a) A criminal act or omission; or

16

b) An act or omission which is criminal in nature and committed by an insured


person who lacked the mental capacity to appreciate the criminal nature or
wrongfulness of the act or omission or to conform his or her conduct to the
requirements of the law or to form the necessary intent under the law.

17

This exclusion applies regardless of whether the insured person is actually

charged with, or convicted of, a crime.


18

I Appellant's App. 227-28 (bold type in original; other emphasis added).

19

The first paragraph of the liability section, by its terms, provides coverage to
"an insured person." The particular exclusionary clauses on which Allstate
relies, however, do not include any reference to "an insured" or "any insured,"
see id. pp 1(a) and 2(a), although the clauses excluding coverage of acts or
omissions while insane or lacking capacity to control conduct do explicitly refer
to "an insured person". See id. pp 1(b) and 2(b). Finally, the criminal act clause
refers to "the insured person" in its final sentence.

20

In reading these clauses as a whole, we cannot tell whether the intentional act
and criminal act exclusions are intended to exclude coverage to all insureds
based on intentional acts by an insured. The exclusions merely state that "we do
not cover bodily injury or property damage resulting from an act or omission
intended or expected to cause bodily injury or property damage...." If we read
the "an" in the first paragraph of the "Losses We Cover" section as meaning
"any insured," it appears that an insured or any insured is covered for liability
for bodily injury or property damage unless that injury or damage resulted from
an act or omission intended or expected to cause bodily injury or property
damage. The exclusionary clauses in question, pp 1(a) and 2(a), do not
explicitly state whether the triggering act or omission must be performed by
"the insured," by "any insured," or by "an insured."

21

Limitations on insurance coverage must be effected through an exclusion clause


with language that clearly identifies the scope of the limitation to the reasonable
purchaser of insurance. Draughon v. CUNA Mut. Ins. Soc'y., 771 P.2d 1105,
1108 (Utah App.1989). Here, the exclusion clause does not clearly identify
whether the intentional act or omission by one insured would preclude
coverage for related negligence by another insured. In fact, the clause can be
read as excluding coverage to any insured for injuries intentionally caused by a
noninsured.

22

We also note that pp 1(b) and 2(b) refer to acts or omissions by "an insured,"
and the final sentence of p 2 refers to "the insured." These clauses are different
from those in the cases relied upon by Allstate, in which the use of "an insured"
rather than "the insured" in the exclusionary clause itself was held to prevent
coverage for injury caused by the intentional acts of one insured, when a suit
was brought against a coinsured on a theory of negligence. See, e.g., Allstate
Ins. Co. v. McCranie, 716 F.Supp. 1440, 1447-49 (S.D.Fla.1989), aff'd sub

nom. Allstate Ins. Co. v. Manning, 904 F.2d 713 (11th Cir.1990); Allstate Ins.
Co. v. Gilbert, 852 F.2d 449, 454 (9th Cir.1988); Allstate Ins. Co. v. Foster,
693 F.Supp. 886, 889 (D.Nev.1988); Allstate Ins. Co. v. Roelfs, 698 F.Supp.
815, 822 (D.Alaska 1987); State Farm Fire and Cas. Co. v. Davis, 612 So.2d
458, 466 (Ala.1993). All of these cases dealt with language that excluded
coverage to "an insured," which the court read as "any insured." We do not
know why the Allstate policies differ. But we must deal with the particular
policy and the specific language at issue before us. In the instant case the
applicable exclusion clauses do not use the term "an insured", "any insured," or
even "insured."3
23

Allstate points out its "joint obligations clause," which reads "[t]he terms of this
policy impose joint obligations on persons defined as an insured person. This
means that the responsibilities, acts and failures to act of a person defined as an
insured person will be binding upon another person defined as an insured
person," I Appellant's App. 26 (bold in original). But Allstate does not urge that
this clause renders unambiguous the pertinent liability exclusion clauses.
Nevertheless, we considered this argument because another case relied on it.
See Allstate Ins. Co. v. McCranie, 716 F.Supp. at 1448 (citing Allstate Ins. Co.
v. Childs, No. 87-1055-Civ-ORL 18 (M.D.Fla. July 7, 1988)). We believe,
based on the placement of the joint obligations clause in the policy, that the
provision refers to obligations to pay premiums, to make timely claims, etc.,
and that in any event a reasonable insured would not understand a "joint
obligations" clause to exclude liability coverage for all insureds when coverage
was excluded for one insured.

24

Although we reason differently, we agree with the district court's determination


that the policy was ambiguous as to whether Allstate had a duty to defend and
indemnify Brown when her coinsured husband was not covered because he
engaged in an intentional or criminal act excluded by the policy. Based on Utah
law that contracts of insurance are to be construed in favor of the insured,
particularly exclusionary clauses, we hold that Allstate has a duty to defend
suits alleging Brown's negligence and, if liability is imposed, to indemnify
Brown even though her coinsured is denied coverage because of his intentional
or criminal acts.

25

In so holding, we also reject Allstate's argument that we should look to the


"underlying cause of the injury" to determine whether Brown is covered.
Allstate cites Gilbert, 852 F.2d 449, and Allstate Ins. Co. v. Freeman, 432
Mich. 656, 443 N.W.2d 734 (1989), for the proposition that if injuries and
damages arise from one insured's intentional or criminal conduct, the insurance
company has no obligation to indemnify or defend any coinsured who is sued

on a negligence theory. Gilbert and Freeman are distinguishable in that their


results were based in part on the "an insured" language in the exclusion portion
of the policy. Freeman also relied in part upon cases involving vehicle accidents
in which insureds sought to have the insurer defend under a homeowner's
policy. Such cases, we believe, involve a different concept than the instant
case. It seems logical that if a homeowner's policy excludes coverage for the
use of automobiles, the negligent entrustment of automobiles is derivative, and
there should be no coverage. Negligent entrustment of weapons and failure to
warn are not derivative in the same way.
26

In any event, our review indicates that the Utah courts have not specifically
adopted nor rejected the view that negligent acts or omissions connected to
intentional acts of other insureds are never covered by homeowner's liability
policies. Therefore, based on the Utah policies of construing exemptions
against the insurance company and of focusing on individual responsibility, see
Error v. Western Home Ins. Co., 762 P.2d 1077 (Utah 1988), we believe the
district court correctly focused on the cause of action against the insured for
whom the company is attempting to deny coverage--here, Brown's negligence.
See Catholic Diocese v. Raymer, 251 Kan. 689, 840 P.2d 456, 461 (1992)
(looking to specific theory of liability alleged rather than underlying cause of
injury to determine insurance coverage). If Allstate wants its homeowner's
insurance policies to exclude coverage for all insured persons for an excluded
act by any insured person, it can do so by careful drafting.

III
27

Finally, Allstate asserts that Brown's actions or omissions did not constitute an
"accident." The policy provides "[s]ubject to the terms, limitations and
conditions of this policy, Allstate will pay damages which an insured person
becomes legally obligated to pay because of bodily injury or property damage
arising from an accident and covered by this part of the policy." I Appellant's
App. 44 (bold in original). Allstate contends that the allegations against Brown
do not constitute an "accident" under the policy because her alleged negligence
is not the action that actually caused Karla Roth's death or the other injuries,
citing Mutual of Enumclaw v. Wilcox, 123 Idaho 4, 843 P.2d 154 (1992). In
that case a woman was sued for her negligence in failing to warn potential
victims of her ex-husband's propensity to sexually molest children. The Idaho
Supreme Court held the wife was not entitled to coverage because her conduct
was not the conduct that caused the injuries. Allstate's "no accident" argument
goes too far we believe; it would seem to relieve the insurer from providing a
defense to any suit brought against a nonacting insured--e.g., when husband
inadvertently dropped a substance on a walkway that caused injury and the

injured party sues both insured spouses. As stated above, we believe Utah
would more likely follow the courts that look to the actual allegations of
negligence and not the "underlying actions."
28

Further, Utah has adopted a broad definition of accident in accidental death


policies. Winchester v. Prudential Life Ins. Co. of America, 975 F.2d 1479,
1487 (10th Cir.1992) (Utah courts apply the "less strict standard of defining
'accidental' as a result that was not reasonably foreseeable even if the means
causing the result was foreseeable or even intentional." (citation omitted)). The
Utah court also has noted that in a liability policy, "courts have generally held
that 'accident' includes results negligently caused by the insured." Hoffman v.
Life Ins. Co. of N. America, 669 P.2d 410, 416 n. 2 (Utah 1983).

29

We AFFIRM the district court's holding that Allstate has a duty to defend and,
if necessary, indemnify its insured, Karen Worthington Brown, in the suits that
claim she negligently entrusted weapons and negligently failed to warn others
of her husband's potential dangerousness.

30

DAUGHERTY, District Judge, dissenting.

31

I must respectfully dissent. As indicated in the majority opinion, the applicable


section in the policy at issue in the case at bar covers "damages which an
insured person becomes legally obligated to pay because of bodily injury or
property damage arising from an accident ..." (emphasis added). The section
specifically excludes coverage for injuries resulting from "[a]n act or omission
intended or expected to cause bodily injury or property damage. This exclusion
applies even if the bodily injury or property damage is of a different kind or
degree, or is sustained by a different person or property, than that intended or
expected ..." (emphasis added). It is my opinion that the injuries at issue in the
lawsuit against Karen Worthington could not be considered to have arisen from
an "accident" in any logical or reasonable sense of the word, whether one looks
to the conduct that caused the injury, as did the Idaho Supreme Court in Mutual
of Enumclaw v. Wilcox, 123 Idaho 4, 843 P.2d 154 (1992), or the allegations
asserted against Karen Worthington herself.

32

The word "accident" is defined by Webster's Unabridged Dictionary as "an


event or condition occurring by chance or arising from unknown or remote
causes; lack of intention or necessity; an unforeseen, unplanned event or
condition ..." Webster's Third New International Dictionary 11 (1981). Black's
Law Dictionary states that the word "accident" denotes "any unexpected
personal injury resulting from any unlooked for mishap or occurrence ... An

event that takes place without one's foresight or expectation; an undesigned,


sudden and unexpected event.... A more comprehensive term than 'negligence,'
and in its common signification the word means an unexpected happening
without intention or design." Black's Law Dictionary 15 (6th ed. 1990). An
insurance law treatise defines the concept of "accidental" as "happening by
chance or unexpectedly taking place, not according to the usual course of
things; fortuitous; befalling by chance out of the regular course of things; ..."
Couch on Insurance 2d (Rev. ed.) Sec. 41:19. The Utah Supreme Court has
stated that "a person is a victim of an accident when, from the victim's point of
view, the occurrence causing the injury or death is not a natural and probable
result of the victim's own acts." Hoffman v. Life Insurance Co. of North
America, 669 P.2d 410, 416 (Utah 1983).
33

The above definitions consistently define accident in the same general terms. It
is apparent that when such definitions are applied to the facts of the case at bar,
neither the results flowing from the conduct of Richard Worthington, the
perpetrator of the crime, or the conduct of his then wife Karen Worthington
should be properly considered accidental.

34

Applying the rationale used in the Enumclaw case cited above, the focus is
placed on the actions which actually cause the underlying injury, in this case
the deliberate and intentional criminal conduct of Richard Worthington. It is
undisputed that Richard Worthington's intentional conduct is not covered by
the homeowner's policy and, under the theory of Enumclaw, though Karen
Worthington did not commit the acts which caused the injuries, the
homeowner's policy should provide no coverage to her as well. I find such an
approach to be well-reasoned and sound, and disagree with the majority that
such approach would necessarily relieve an insurer from providing a defense to
any nonacting insured.

35

In any event, I am also of the opinion that the allegations made against Karen
Worthington individually do not constitute the occurrence of an accident
pursuant to the terms of the Allstate homeowner's policy. Karen Worthington is
claimed to have acted negligently in giving Richard Worthington access to his
firearms when he was obviously agitated and unstable and when she knew of
his threats of bodily harm to her doctor and personnel at the hospital, and
having such knowledge, in failing to warn the hospital and the authorities of his
intent to do violence at the hospital. Applying Utah's definition of an accident
as "an unlooked-for mishap which is not expected or designed," Hoffman, 669
P.2d at 416 (Utah 1983), citing Schmidt v. Industrial Commission of Utah, 617
P.2d 693 (Utah 1980), I fail to see how such definition could encompass the
allegations made against Karen Worthington in the Utah state cases. Given

Karen Worthington's awareness of her husband's mental state, the threats he


had made and her knowledge that he was bound for the hospital with an arsenal
of firearms, the death of Karla Roth and the injuries sustained by the other
Defendants should be deemed "naturally and probably expected or anticipated,"
Hoffman, 669 P.2d at 416, as she furnished the weapons to her husband and
then failed to warn.
36

Moreover, I do not agree with the majority that the reference in the pertinent
section of the Allstate policy to "an insured person" is ambiguous. It should be
noted that the pertinent family liability section of the policy uses the phrase "an
insured person" five times during the explanation of included and excluded
losses. The phrase "the insured person" is used only once, and that use occurs at
the end of the liability section and understandably applies only to the insured
who is actually charged with a crime. As a result, when the liability section is
construed as a whole, I am of the opinion that the language used by Allstate in
this section of its policy is not ambiguous but "is sufficient to demonstrate that
the intentional act of any insured negates coverage for claims brought against
another insured." Allstate Insurance Co. v. McCranie, 716 F.Supp. 1440, 1448
(S.D.Fla.1989), aff'd, 904 F.2d 713 (11th Cir.1990). See also, Allstate Ins. Co.
v. Gilbert, 852 F.2d 449 (9th Cir.1988); Allstate Ins. Co. v. Roelfs, 698 F.Supp.
815 (D.Alaska 1987); Allstate Ins. Co. v. Foster, 693 F.Supp. 886
(D.Nev.1988); State Farm Fire and Casualty Co. v. Davis, 612 So.2d 458
(Ala.1993); Allstate Ins. Co. v. Freeman, 432 Mich. 656, 443 N.W.2d 734
(1989); Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 581 N.Y.S.2d 142, 589
N.E.2d 365 (1992).

37

The alternative determination of the district court to allow insurance coverage


for Karen Worthington was on the basis that she was an innocent co-insured
under the rule enunciated in Error v. Western Home Ins. Co., 762 P.2d 1077
(Utah 1988). Such determination is clearly erroneous considering the
allegations made against her in the Utah state cases and the requirement of the
Courts who have embraced this rule that such a co-insured must have no
involvement in the events which caused the damage. Hedtcke v. Sentry Ins.
Co., 109 Wis.2d 461, 326 N.W.2d 727 (1982); Auto-Owners Ins. Co. v.
Eddinger, 366 So.2d 123 (Fla.1979); Economy Fire and Casualty Co. v.
Warren, 71 Ill.App.3d 625, 28 Ill.Dec. 194, 390 N.E.2d 361 (1979). Karen
Worthington admittedly gave her husband the firearms and failed to warn the
hospital of his intentions. Thus, she was not an innocent co-insured but was a
co-insured involved in the events bringing about the damage complained of by
the Defendants. The majority did not treat with this alternative finding, but in
dissent I should. I would find the fire insurance case of Error, in which the coinsured wife was completely innocent in that she was not in any way involved

in the act of arson committed by her co-insured husband, to be not applicable to


the facts of this case and the alternative finding to be erroneous. Karen
Worthington was not innocent but was involved.
38

In summary, it seems clear to me that the allegations made against Karen


Worthington in the Utah state cases concerning her furnishing her husband his
weapons and with knowledge of his threats of violence failing to warn the
hospital or authorities of his intent in going to the hospital describe deliberate
conduct on her part with expected consequences of violence. Such conduct does
not constitute an accident as required by the applicable section of the insurance
policy for it to afford coverage to her. As stated above, the relevant section
specifically excludes coverage for injuries resulting from an act (furnishing
firearms) or omission (failing to warn) expected to cause bodily injury, even
though not of a precise kind or degree or sustained by a different person than
that intended. Such conduct also does not sustain an accident under Utah law,
which requires a result not expected or anticipated. It also seems clear to me
that the use of the words "an insured person" in the relevant liability section
means any insured person, thus excluding Karen Worthington from coverage
on this basis as well. The briefs cite four federal and at least six state cases to
this effect and they also find no ambiguity in this meaning and intent. As a
question of law for the Court, I would find no ambiguity in the liability section.
The innocent co-insured rule used in Error is inapplicable to the admitted facts
of this case. I would therefore reverse the district court's holding that Allstate
has the duty to defend and indemnify its insured, Karen Worthington Brown, as
to the suits brought against her by the Defendants.

The Honorable Frederick A. Daugherty, Senior United States District Judge,


United States District Court for the Western District of Oklahoma, sitting by
designation

Allstate also argues that the "innocent coinsured" case law does not afford
coverage. See Error v. Western Home Ins. Co., 762 P.2d 1077 (Utah 1988).
Because of our decision on the other points we need not, and do not, address
this contention challenging the district court's alternative finding

Brown moved for summary judgment in the state suit, alleging that she had no
duty to Karla Roth. The district court of Utah denied the motion, stating that it
could not be concluded as a matter of law that she owed no duty to Karla Roth.
Brown petitioned the Utah Supreme Court for relief from the denial of her
motion; the Utah Supreme Court denied the petition

Many cases defendants rely on found policies ambiguous because of


severability clauses, and we note that the policy in question does not contain a
severability clause. Because we have ruled the pertinent clauses to be
ambiguous for other reasons, however, we need not address the severability
clauses